UPDATE -- The Department of Labor proposed a new conflict of interest rule in the Spring of 2015 which does not include appraisers of Employee Stock Ownership Plans. The AICPA believes the removal of valuation providers from the original proposed rule is a positive outcome. Importantly, the DOL has expressed interest in working with the appraiser community to improve guidance for ESOP appraisers, and the AICPA looks forward to working with the Department to craft a solution that protects plan participants while not imposing an undue burden on plans or valuation providers. Click for more information.

The AICPA believes that CPAs who perform valuation services for employee stock ownership plans (ESOPs) should not be defined as fiduciaries under the Employee Retirement Income Security Act (ERISA). Rather, the AICPA believes that the U.S. Department of Labor (DOL) should implement rules that would require appraisers of ESOPs to meet minimum qualification requirements, including holding relevant credentials and training, and comply with applicable professional valuation standards.

The Issue in brief:

AICPA’s Senior Vice President for Governmental & Public Affairs, Mark Peterson, discusses the DOL’s anticipated fiduciary rule re-proposal and its impact on CPAs.

Background and Proposed Regulatory Action

The DOL has expressed concerns with the quality of a
limited number of appraisals of ESOPs subject to ERISA, and that it
lacks the authority to take legal action against ESOP appraisers. To
address its concerns, in November 2010 the DOL proposed rules that would
broaden the agency’s definition of a ERISA fiduciary to include persons
who provide advice, or an appraisal or fairness opinion concerning the
value of securities or other property.

In September 2011, the DOL withdrew its proposal and
announced that it would re-propose its fiduciary rule. According to the
DOL’s website, a new rule proposal is expected to be issued August 2014.

AICPA Position on Regulatory Action

AICPA believes the DOL should not expand the longstanding definition of fiduciary under ERISA. Specifically, the AICPA expressed significant concerns with the DOL’s original 2010 proposal, including that the proposal:

Would create a conflict between a fiduciary’s strict duty of loyalty to plan participants and beneficiaries and professional appraisal standards, which require an appraiser to perform assignments with impartiality, objectivity and independence,

Does not address the underlying issue of proper qualifications and standards for performing valuation services,

Will increase the cost of valuation services for ESOP plans, and

Will restrict the number of valuation specialists willing to do valuations for ESOP plans.

The AICPA recommended the DOL instead implement rules to ensure that only qualified individuals prepare ESOP valuations and that appraisers have proper qualifications and follow recognized valuation standards. The DOL’s rule should mirror other regulatory agencies regarding the regulation of appraisers.

Legislative Action

Senator Kelly Ayotte (R-NH), with a bi-partisan group of several senators, introduced legislation in the last Congress (S. 1232) and again in February 2013 (S. 273) to modify the definition of fiduciaries under ERISA to specifically exclude ESOP appraisers. Representative Brett Guthrie (R-KY), also with bi-partisan support, introduced corresponding legislation (H.R. 2041) in May 2013.

Resources

Contacting Your Member of Congress

If this issue affects you or your clients, or if you have relationships with your Members of Congress, please consider taking the following steps to ask your Representative and Senators to co-sponsor these bills.

Use your Members of Congress’ online contact forms on their websites to send your letters. State your purpose for writing in the first sentence, and be sure to ask for support of the appropriate measure (S. 273 for Senators; H.R. 2041 for House members).

Cut and paste the appropriate sample letter below into the body of the email. Please let us know who you contacted and send a copy of your letters to congaffairs@aicpa.org.